Branch Bank at Mobile v. Coleman , 20 Ala. 140 ( 1852 )

LIGON, J.

1. The first assignment of error cannot be sustained, as the record and proceedings in the case show, throughout, that the Branch Bank at Mobile was a party to the proceedings in the court below, and to presume that it had no notice of them, would be to presume against the record, which cannot be allowed; and its assignee of the judgment had the right to use its name in litigating the matter set forth in the petition for supersedeas. Edwards v. Lewis, 16 Ala. Rep. 813.

2. When an issue is formed on facts in the Circuit Court, a jury may be empannelled to try it, and, indeed, such method of trial is the only correct one in that court, unless it appears from the record, that the parties consented to substitute the judge for the jury, or in cases in which a demurrer to testimony is interposed. The petition for the supersedeas in this c se sets out two reasons for quashing the execution, first, that the judgment had been satisfied; and second, that no execution had been issued in a year and a day from the rendition of the judgment, so that the one sought to be quashed, issuing after that time, was irregular. Both these grounds are distinctly traversed and denied by the answer of the respondent, thus presenting two issues of fact, which the court might well submit to be tried by a jury. Dunlap v. Clements, 18 Ala. Rep. 778; Edwards v. Lewis, 16 Ala. Rep. 813.

3. There was no error in permitting the witness Bower to testify, under the circumstances disclosed in the bill of exceptions. He was, it is true, one of the firm of Gayle & Bower, for whose accommodation the petitioner endorsed the note on which the judgment was foundedbut, it appears, the petitioner had released him from all liability on this account before he was sworn. It is no objection to the release, that it was delivered to the witness by the counsel of the petitioner, for we must presume he was the agent of the petitioner for that purpose, especially as it is shown the petitioner declared to others, after its delivery, that he had released the witness.

4. We cannot well see to what portion of the record the fourth assignment of error is intended to apply, but apprehend that it relates to that part of the testimony which goes to prove, that although the petitioner appears to be first endorser on the note, yet, he only occupies the position of accommodation endorser, and that Gayle & Bower, though they appear last on the note, are the parties primarily liable, according to an agreement between them and the petitioner, at the time of the endorsement. It is clearly competent to show, by parol, the intention of the parties at the time the contract was entered into, with regard to their several liabilities among themselves, and the relation which they were to bear to the note. For this purpose, the testimony was allowed in this case, and we regard it legitimate.

5. The court allowed the petitioner to show, by parol, that the real estate which the Bank accepted, in satisfaction of all the debts due to it by Gayle & Bower, belonged to them, and not to Richard W. Gayle, to whom the deeds were made, and in whose name the negotiation with the Bank was carried on by Billips Gayle, in tbe absence, and as far as tbe proof discloses, without tbe knowledge of Richard. This testimony was pertinent to tbe issue, and it would be difficult to conceive by what evidence a secret, and resulting trust could be established, were parol proof to be excluded. Gayle & Bower were tbe equitable owners of tbe lands conveyed by Richard W. Gayle to the Bank; their equity was a perfect one, and Richard W. Gayle held only tbe naked legal title. "When, therefore, it was used to pay tbe debts of Gayle & Bower, with their consent, and by bis sanction, tbe trust which bad been reposed in him, by bis having been invested with tbe legal title, was fully executed; and if be afterwards attempts to set up this legal title, for tbe purpose of claiming an unjust benefit, which might result from, bis having once possessed it, tbe party from whom be seeks to obtain it may show by parol, that be held it only in trust for others, and that it has been devoted to tbe purposes of that trust.

Tbe proceeding in this case, in tbe court below, cannot be regarded as a preceeding at common law, in tbe strict sense of that term. It is substituted, in our practice, for tbe writ of audita querela, and tbe same rules which governed tbe one, must regulate tbe other, with but slight exceptions. Lockhart v. McElroy, 4 Ala. Rep. 572; Edwards v. Lewis, 16 Ala. Rep. 813; Dunlap v. Clements, 18 Ala. Rep. 778; Rutland v. Pippin, 10 Ala. Rep. 469. This writ, and tbe proceeding on which it was founded, were in tbe nature of a bill in equity; (1 Bac. Ab. 307; 2 Black Com. 405); and tbe ground of tbe jurisdiction to award it is said be, tbe power and duty of all courts to prevent tbe abuse of their process, where an improper, or unjust use is attempted to be made of it, (Lockhart v. McElroy, supra); indeed, it may be properly regarded in all instances, in which tbe matter of discharge insisted upon in tbe petition does not appear on tbe record, as a substitute for a bill in equity. Great latitude must, therefore, be allowed in making up tbe issue, and a corresponding latitude extended to tbe proof under such issue. So, that, even, if tbe matter relied upon by tbe petitioner would form a good equitable satisfaction of tbe judgment, which tbe writ of execution is used to enforce, it may be inquired into in this way, and the execution perpetually superseded.

6. It is also objected, in this case, that the petition for supersedeas was verified by the agent. This objection cannot be allowed to prevail. The statute which authorizes the Circuit Court judges to grant writs of supersedeas in vacation, is in these words; “ The Judges of the Circuit Court, respectively, shall have power and authority, in vacation, to supersede any execution, when it shall satisfactorily appear to them, or any of them, that the same shall have improperly issued from the clerk’s office of any of the Circuit Courts of this State.” (Clay’s Digest, 208 § 38.) It is not required that the petition presented should be verified by the oath of the person in whose name, and on whose behalf it is filed; but it is sufficient, if the judge to whom it is presented is satisfied, that the execution has improperly issued; and any person who knows the matters set forth in the petition to be true, may verify it. Were it otherwise, many instances might occur of payments by agents, whose knowledge upon the subject would be ample, when the principal could only swear as to his belief; and these cases might happen with non-resident defendants, who have property and agents in this State, and whose absence at the time of the levy of a fi. fa. on a satisfied judgment, might result in their being compelled to pay its amount a second time.

We find no error in the record, and the judgment must be affirmed.